STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4917

) HIRAM AND DEANA BOWDEN d/b/a ) BOWDEN'S TRAILER PARK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on December 13, 1989, in Orlando, Florida.

APPEARANCES

For Petitioner: Sonia N. Burton, Esquire

HRS-District 7 Legal Office

400 W. Robinson St., Suite 701 Orlando, FL 32801

For Respondent: J. Thomas Bowden, Esquire

P.O. Box 3187

Orlando, FL 32802-3187 STATEMENT OF THE ISSUES

The administrative complaint in this proceeding alleges that Respondents, owners of a licensed mobile home park, have failed to maintain a water system in accordance with Department of Health and Rehabilitative Services and Department of Environmental Regulation requirements; and have failed to maintain a sewage disposal system in satisfactory condition in compliance with regulations of the Department of Health and Rehabilitative Services.

No evidence was produced at hearing regarding the allegation of failure to maintain a proper water system, and that allegation is deemed abandoned.

The issue for disposition is whether Respondents have failed to maintain a proper sewage disposal system, and, if so, what enforcement action is appropriate.

PRELIMINARY STATEMENT

On August 25, 1989, Respondents, through counsel, responded to Petitioner's Administrative Complaint with an answer and request for formal hearing.

At the commencement of the hearing Petitioner ore tenus moved for a recommended order of dismissal, based upon the Respondents' failure to file a request for hearing within 30 days. The motion was taken under advisement, pending proof that the complaint had been received.

Petitioner presented the testimony of Thomas Yurchenco, Environmental Specialist; Russell Miller, Director of Environmental Health for the Orange County Public Health Unit; Jim Craigo, Supervisor; Dean Bodager, HRS Environmental Health Consultant; and James Sawyer, Jr., HRS District 7 Legal Counsel.

Petitioner's five exhibits were received in evidence.

Respondents presented the testimony of Hiram Bowden, Owner; and three park residents, Billy Martin, Arlen Ray Cunningham, and Diane Garner.

Respondent's three exhibits were received in evidence.

No transcript was filed nor did either party submit post-hearing briefs or proposed recommended orders.

FINDINGS OF FACT

1. Hiram Bowden, age 65 years, has owned the property and lived for 25 years at Bowden's Trailer Park, 514 Glen Road, Orlando, Orange County, Florida.

   
   

   He resides with his wife, Deana, and adult son, Joe.

   
   

2. Bowden's Trailer Park is licensed as a mobile home park by the Department of Health and Rehabilitative Services, pursuant to Chapter 513, F.S. The permit allows 21 mobile homes and several recreational vehicles.

   
   

3. The park is served by an on-site sewage disposal system, also known as septic tanks. This system provides anaerobic treatment, with waste solids settling out and liquids passing through filters and into a drain field.

   
   

   Because of the high water table in the area, the Bowdens' system is above ground. That is, the tank is below ground and the effluent is pumped up to a treatment box and into perforated drain tile pipes. The drainfields, including the drain tiles, are above ground, covered with earth, with cement block walls.

   
   

   The Bowdens have two drainfields, a large one serving about three-fourths of the trailers and a laundry, and a smaller field serving the rest of the trailers.

   
   

4. Tom Yurchenco has been an environmental health specialist with the Orange County Health Department since 1983. He has a 4-year undergraduate degree in environmental studies and is a certified Class B Wastewater Treatment System Operator.

   He was first assigned to inspect Bowden's Trailer Park on July 25, 1988.

   
   

5. On that date he found both drainfields overgrown and cluttered with debris. There was a distinct odor, but it was impossible to tell what the problem was. His inspection report, left at the site, required the area to be mowed.

   
   

6. The mowing was accomplished, and on August 8, 1988, Yurchenco found the drainfields leaking. The Bowdens were given a sanitary nuisance citation and a week to correct the problem.

   
   

   Another inspector visited the site on August 16, 1988. Yurchenco returned on September 1, 1983 and found the large field was no longer leaking. The repair job appeared, however, to be make-shift, with dirt piled and packed in. The small drainfield was leaking.

   
   

   On October 26, 1988, Yurchenco found the large drainfield was leaking again, with effluent flowing into a county ditch. The small drainfield was too overgrown for a close inspection. On November 4, 1988, there was no change in the conditions.

   
   

   A letter was sent to the Bowdens reminding them of the August 8, 1988, notice to abate, and warning them of legal action.

   
   

   On December 13, 1988, Thomas Yurchenco found no change in the drainfields, and referred the case for legal action.

   
   

   He made other inspections on January 30, 1989; February 2, 1989; February

   16 and 17, 1989; April 5, 1989; and May 3, 10 and 18, 1989.

   
   

   On each occasion one or the other or both drainfields were leaking sewer effluent, on some days draining into the county drainage ditch.

   
   

7. Some, but not all, of the inspection reports are signed by the Bowdens-

   -Deana, Hiram or Joe. The health department inspector tried to deliver the reports, but a dog guarded the Bowden's trailer and when the inspector drove up and honked his horn, sometimes there would be no response. On those occasions he left the report at the pump house.

   
   

   He also spoke with the Bowdens by telephone, and numerous letters were sent describing the problem and urging correction.

   
   

   It was obvious that some work was done from time to time in response to the requests, but nothing of lasting significance.

   
   

8. Jim Craigo, an inspection supervisor with the Orange County Health Department, visited the site most recently on October 10, 1989, and December 11, 1989. On both days the large drainfield was operating but the smaller (northside) drainfield was leaking.

   
   

9. Defective sewage treatment facilities are a serious health hazard. Pathogenic enteric diseases are spread by exposure to sewage effluent. The drainfields at Bowdens Trailer Park are near the trailers, where children play and pets are allowed to wander.

   
   

   The organisms from the effluent are also transmitted to humans indirectly by flies and roaches.

10. Failure in a sewage disposal system such as the Bowdens' can be caused by faulty construction, poor soil, misuse of detergents, grease-laden products, driving vehicles over the drainfield or too much water.

    
    

    When Bowden closed the laundry, the conditions in the system serving that facility improved. The inspectors also noted that the leakage was worse when the pumps were operating, thus indicating that the system could not handle the volume being generated.

    
    

11. Health department staff can make suggestions to owners regarding corrections to the system but the owner is ultimately responsible for identifying the cause of the failure and for taking all necessary corrective action.

    
    

12. Hiram Bowden made some repairs to his system, but he did not consult an engineer as suggested by Inspectors Yurchenco and Craigo.

    
    

    He used to install septic tanks, although he does not claim that he has ever been registered by the department as required in Rule 10D-6.070, F.A.C.

    
    

    The repairs made to the Bowdens' system have been effective in preventing the leakage continually noted by the inspectors for approximately eighteen months.

    
    

13. Dean Bodager is an HRS Environmental Health Consultant Environmental Health Consultant in District 7. He helps the county health units prepare legal cases. After the Bowden complaint was drafted and signed, he gave it to his secretary to send certified mail. The complaint itself is not dated, but the post office return receipt was received at Bodager's District 7 Health Program Office on April 18, 1988, with a signature "Deana Bowden", and date of delivery of April 15, 1989.

    
    

14. Hiram Bowden admits that he received the official notice to abate dated August 8, 1988. He also admits that he received the Administrative Complaint. He claims that he called someone at HRS, but he did not respond in writing within 30 days, as required in the complaint, as he did not understand that this was a form of legal action at the time. He admits there are still problems with the small drainfield, but claims that he keeps trying to fix them and to do what the inspectors suggest.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and subject matter pursuant to Section 120.57(1), F.S.

    
    

16. Bowdens Trailer Park is a "mobile home park" defined in Section 513.01(3), F.S. As such, it is permitted by the Department of Health and Rehabilitative Services pursuant to Section 513.02, F.S.

    
    

17. Section 513.055, F.S. provides:

    
    

    513.055 Revocation or suspension of permit; fines; procedure --

    (1)(a) The department may suspend or revoke a permit issued to any person or public body to comply with

    the provisions of this chapter or the rules adopted under this chapter.

    (b) No permit shall be suspended under this section for a period of more than 12 months. At the end of the period of suspension, the permittee may apply for the reinstatement or renewal of the permit. The permittee of a mobile home or recreational vehicle park, the permit of which is revoked, may not apply for another permit prior to the date on which the revoked permit would have expired.

    (2)(a) In lieu of such suspension or revocation of a permit, the department may impose a fine against a permittee for the permittee's failure to comply with the provisions described in paragraph (1)(a) or may place such licensee on probation. No fine so imposed shall exceed $500 for each offense, and all amounts collected in fines shall be deposited with the Treasurer to the credit of the Mobile Home and Recreational Vehicle Park Trust Fund.

    (b) In determining the amount of fine to be imposed, if any, for a violation, the following factors must be considered:

    1. The gravity of the violation and the extent to which the provisions of the applicable statutes or rules have been violated.

    2. Any action taken by the operator to correct the violation.

    3. Any previous violation.

    
    

18. Section 513.08, F.S. provides:

    
    

    513.08 Disposal of sewage.--It is unlawful to empty any receptacle or fixture containing human excreta, human urine, or any other liquid waste from a mobile home or recreational vehicle except into a sewerage system approved by the department. The mobile home park or recreational vehicle park owner or operator shall provide such means for the emptying of such receptacles

    and for their cleaning as may be specified in the rule of the department.

    
    

19. Section 513.10, F.S. provides, in pertinent part:

    
    

    513.10 Enforcement and penalties.--

    * * *

    (2) This chapter or rules adopted under this chapter may be enforced in the manner provided in s. 381.031(3) and as provided in this chapter. Sanitary rules adopted pursuant to s. 381.031(1) and this chapter are a part of the Sanitary Code of Florida created by s. 381.031(1)(g). Violations of this chapter and the rules adopted under this chapter are subject to the penalties provided in the chapter and in ss. 381.112 and 381.411.

    
    

20. Section 386.041, F.S. provides, in pertinent part:

    
    

    1. Nuisances injurious to health.--

       1. The following conditions existing, permitted, maintained, kept, or caused by any individual, municipal organization, or corporation, governmental or private, shall constitute prima facie evidence of maintaining a nuisance injurious to health:

          1. Untreated or improperly treated human waste, garbage, offal, dead animals, or dangerous waste materials from manufacturing processes harmful to human or animal life and air pollutants, gases, and noisome odors which are harmful to human or animal life.

          2. Improperly built or maintained septic tanks, water closets, or privies.

    * * *

    
    

21. Rules of the Department adopted to regulate the disposal of excreta, sewage or other wastes are part of the "Sanitary Code of Florida", pursuant to Section 381.031(1)(g), F.S.

22. Rule 10D-6.050, F.A.C. provides in pertinent part: 10D-6.050 Maintenance. Any person

    owning or controlling property upon which an onsite sewage disposal

    system is installed shall be responsible for maintenance of the system. The following criteria are provided for guidance in proper system maintenance.

    1. Systems shall be maintained at all times to prevent seepage of

       sewage or effluent to the surface of the ground.

       * * *

       
       

23. The Bowdens failed to respond in writing to the administrative complaint within 30 days of their receipt, as plainly required by the complaint itself.

    
    

    However, it is plausible that they misconstrued the legal effect of the document, as they had been dealing informally with health department staff for approximately a year in response to other written legal notices such as the notice to abate.

    
    

    The motion for recommended order of dismissal is denied.

    
    

24. This, however, does not alter the recommended disposition of the case. HRS proved recurring violations of Sections 513.08 and 386.041, F.S., and Rule 10D-6.50, F.A.C., as alleged in its complaint.

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED

That a Final Order be entered revoking Respondents' mobile home park permit.

DONE AND RECOMMENDED this 16th day of February, 1990, in Tallahassee, Leon County, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1990.

COPIES FURNISHED:

Sonia N. Burton, Esquire HRS-District 7 Legal Office

400 W. Robinson St., Suite 701 Orlando, FL 32801

J. Thomas Bowden, Esquire

P.O. Box 3187

Orlando, FL 32801-3187

R. Sam Power, Agency Clerk HRS

1323 Winewood Blvd.

Tallahassee, FL 32399-0700

John Miller, General Counsel HRS

1323 Winewood Blvd.

Tallahassee, FL 32399-0700

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Petitioner, CASE NO.: 89-4917

vs.

HIRAM AND DEANA BOWDEN d/b/a BOWDEN'S TRAILER PARK,

Respondent.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above- styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.

RULING ON EXCEPTIONS FILED BY THE DEPARTMENT

Counsel excepts to the Hearing Officer's recommendation that petitioner's mobile home park permit be revoked and maintains that a less severe sanction is appropriate. Counsel requests the imposition of a $3,000.00 fine. The exception is granted.

FINDINGS OF FACT

The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except for the recommended penalty.

Based upon the foregoing, it is

ADJUDGED, that a fine of $3,000.00 be imposed on respondents, Hiram and Deana Bowden d/b/a Bowden's Trailer Park. The fine shall be paid within 30 days of the rendition of this Order.

DONE and ORDERED this 11 day of April , 1990, in Tallahassee, Florida.

Gregory L. Coler Secretary

Department of Health and Rehabilitative Services

by Deputy Secretary for Health

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Copies furnished to:

J. Thomas Bowden, Esquire Post Office Box 3187 Orlando, FL 32802-3187

Sonia N. Burton, Esquire District 7 Legal Office

400 W. Robinson, Suite 701 Orlando, Florida 32801

Mary Clark Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U.S. Mail this 11 day of April 1990.

R. S. Power, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700 904/488-2381

Docket for Case No: 89-004917

Orders for Case No: 89-004917